Right of View by Prescription from Common Owner: When the Court of Cassation Reminds the Limits

Imagine: you are the owner of a flat in Annecy, with a lovely view of the lake. One day, your downstairs neighbour cuts a window that looks directly into your home. You wonder: does he have the right? And what if the former owner already had these openings? The question of rights of view (the right to look over the neighbouring land) is a classic neighbourhood dispute. The Court of Cassation, in a judgment of 10 January 1996, reminds us of an essential rule: a servitude can only arise by prescription from common owner (i.e. because the two lands belonged to the same owner) if it is apparent at the time of the division.

This decision, although old, remains relevant and has been confirmed since. It concerns all owners, whether occupiers or lessors, as well as purchasers. But what does it change exactly? How should you react if faced with unlawful openings? Let's dive into the details.

For the devil is in the details: the court of appeal had recognised a right of view in favour of the co-owners of a building, but the Court of Cassation overturned this judgment. Why? Because the trial judges had not drawn the legal consequences from their own findings. Explanations.

The facts: a story that happens every day

The case concerns a building named "Le Méditerranée", probably located in the south of France, but whose name evokes sunny shores. The real estate company (SCI) that owned the land obtained a building permit to erect this building. Before the construction was even completed, it divided the plot and sold part of the land, on which the building under construction stood, to a purchaser. Later, openings (windows, bay windows) were made in the wall of the building adjacent to the neighbouring property, which originally belonged to the same owner (the SCI). The neighbouring owner, disturbed by these views, sought the removal of the openings.

The co-owners of the building "Le Méditerranée" then invoked a right of view by prescription from common owner. In short, they said: since before the division, the same owner owned both plots and had already planned these openings (even if the construction was not yet erected), the servitude exists automatically. The court of appeal followed this reasoning and dismissed the neighbour's claim.

But the neighbour appealed to the Court of Cassation. The Court of Cassation overturned the appeal judgment for violation of Article 693 of the Civil Code (which defines the conditions of the servitude by prescription from common owner). Indeed, the court of appeal had found that at the date of the division, the constructions were at ground level. In other words, the openings had not yet been made; they were not apparent. Now, for a servitude by prescription from common owner to exist, the servitude must be apparent (visible, for example a window or a terrace) at the time of the division.

What few people know: the mere fact of having obtained a building permit or having started work is not enough to create a servitude. The construction must be in a state to manifest the servitude, i.e. the openings must physically exist.

The reasoning of the court — dissected

The Court of Cassation relies on Article 693 of the Civil Code. This article provides that the destination of the common owner (i.e. the situation where two lands having belonged to the same owner are divided, and where the owner has made arrangements that create a servitude) only counts as a title if the servitude is apparent. In other words, for a right of view to be acquired by prescription from common owner, the openings must have been made before the division of the land.

In this case, the court of appeal had recognised that the openings constituted views (direct views, i.e. straight, or oblique views? the judgment does not specify, but the qualification of "view" is retained). Yet, it had also found that on the day of the division, the constructions were at ground level. There were therefore no apparent openings. The Court of Cassation deduces that the court of appeal did not draw the legal consequences of its own findings. In short, the trial judges contradicted themselves: they found a fact (absence of opening) but drew an opposite conclusion (existence of a servitude).

However, note: the Court of Cassation does not call into question the principle of the servitude by prescription from common owner. It simply reminds the strict conditions for its creation. The trial judges must verify that the servitude was apparent at the time of the division. If this is not the case, the servitude does not exist, and the owner of the dominant land (the one benefiting from the view) cannot invoke it.

undefined, I have come across cases where purchasers of building plots found themselves with unlawful views because the seller had started work but had not yet cut the windows. The lesson is clear: you must be vigilant when purchasing a property, especially if there are ongoing constructions.

What this changes for you — concretely

This decision has important practical implications for different profiles.

Owner of a property with a view over the neighbour: if you have acquired a building or a co-ownership unit that has openings giving onto the neighbouring land, you cannot assume that these views are lawful. If they were created after the division of the land, they may be challenged. You must check the date of construction and the date of division. For example, in Saint-Priest, an owner bought a house with a bay window giving onto the neighbour's garden. The former owner had enlarged the house after dividing the land. The bay window was judged unlawful and had to be removed, resulting in costs of €5,000.

Owner disturbed by views: if your neighbour has cut windows that look into your home, and these windows did not exist at the time of the division of the land (if the two plots were separated), you can demand their removal. You can also claim damages for neighbourhood disturbance. In the commented case, the neighbour succeeded after the cassation. If you are in this situation, you must act quickly: the limitation period (time to act) is 5 years from the completion of the works.

Purchaser of a property: before buying, have a notary or a specialised lawyer check that the views are compliant. Request the division deeds and building permits. If views were created after the division, they may be challenged by the neighbour. You could be forced to remove them at your expense.

Co-owner: in a co-ownership, rights of view between units can be a source of conflict. If a co-owner modifies his windows to create a view over the neighbouring unit, this may be prohibited by the co-ownership regulations or by law. The judgment reminds that prescription from common owner cannot be invoked if the openings were not apparent at the time of the division.

Concretely, if you are faced with this type of dispute, you can bring legal proceedings to have the views removed. The cost of proceedings varies between €2,000 and €5,000 at first instance, depending on complexity. But mediation can sometimes resolve the conflict at a lower cost.

Four tips to avoid this type of dispute

• Check the history of divisions before buying: consult the land registry and property deeds. If the property was divided recently, ensure that the existing constructions were already apparent at the time of the division. Ask for old photographs or a bailiff's report.
• Have a notary prepare a statement of servitudes: at the time of purchase, the notary must inform you of active and passive servitudes. Do not hesitate to ask him questions about the views. If the property has views over the neighbour, ask if they are lawful.
• When carrying out works, respect the legal distances: the Civil Code imposes minimum distances for views (1.90 m for direct views, 0.60 m for oblique views). If you cut a window, respect these distances, otherwise the neighbour can demand its removal.
• In case of dispute, attempt conciliation: before starting proceedings, talk to your neighbour. Sometimes an amicable agreement (installing frosted glass, planting hedges) can solve the problem. Mediation is often less expensive and faster than a trial.

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Further reading: related case law and developments

The solution of the judgment of 10 January 1996 has been confirmed by several subsequent decisions. For example, the Court of Cassation ruled in a judgment of 14 February 2006 (no. 04-11.123) that the right of way by prescription from common owner also requires that the passage be apparent at the time of the division. Similarly, for a right of view, the Court recalled in a judgment of 3 May 2012 (no. 11-15.756) that the appearance is assessed on the day of the division, not on the day of construction.

This case law is constant: the trial judges must verify the appearance of the servitude at the precise moment of the division. If the construction is not finished or if the openings have not yet been made, the servitude cannot arise. This rule protects owners of neighbouring lands against views created after the division, which would then be considered unlawful views.

In the future, the courts should continue to apply Article 693 strictly. This strictness is a guarantee for owners: it prevents servitudes from being artificially created by an owner who would divide his land after starting works.

Key points to remember

FAQ:

Question: Can I contest a window cut by my neighbour if it existed before he bought his land?
Answer: Yes, if the window was not apparent at the time of the division of the land. Even if the neighbour bought after the construction, you can act if the window was created after the division.

Question: What should I do if I have just bought a property with views over the neighbour and he contests them?
Answer: Check the date of division and the date of construction of the openings. If they are subsequent to the division, you risk having to remove them. Consult a lawyer quickly.

Question: What is the time limit to bring an action for removal of views?
Answer: The action for removal is subject to a five-year limitation period (5 years) from the completion of the works. After this period, you can no longer act.

Question: Can I obtain damages for the harm suffered?
Answer: Yes, if the views constitute an abnormal neighbourhood disturbance. You can demand removal and damages. The amount depends on the disturbance caused (loss of privacy, depreciation of the property).

Question: Does the servitude by prescription from common owner still exist?
Answer: Yes, but on condition that the servitude is apparent at the time of the division. It is a legal servitude established without a written title, but it is strictly regulated.

In summary, remember that the right of view by prescription from common owner can only arise if the openings are already visible on the day of the division of the land. If this is not the case, the owner of the neighbouring land can demand the removal of the views, even if the former owner had obtained a building permit before the division.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →